Arellano v. Lopez
| Decision Date | 31 March 1970 |
| Docket Number | No. 8869,8869 |
| Parties | F. A. ARELLANO, Tom P. Crenshaw, Dave Azmora and Rudolph Schwartz, Plaintiffs-In-Error, v. Ruben LOPEZ, Mayor of the Village of Cimarron, Defendant-in-Error. |
| Court | New Mexico Supreme Court |
Wright & Kastler, Raton, for plaintiffs in error.
McAtee, Marchiondo & Michael, Charles G. Berry, Albuquerque, for defendant in error.
Plaintiffs in error were members of the Town Council of the Village of Cimarron when this action was commenced. They will be hereinafter referred to as defendants as they were in the court below. Defendant in error was the Mayor of the Village of Cimarron and plaintiff below. He will be so designated here. Plaintiff, by his complaint, sought removal from office of defendants Arellano, Crenshaw, and Zamora, because of claimed malfeasance in office. In a second count to the complaint plaintiff sought a declaration that the appointment of defendant Schwartz as a member of the Village Council was null and void and an order removing him from office. In a third cause of action plaintiff asked the court to declare that defendant Chavez had been illegally and improperly appointed as a police officer in the Village, and that he be removed from the office. For a fourth cause of action plaintiff asked for compensatory and punitive damages from the defendants because of the expense to which he had been put in employing counsel and bringing the action, and because of the alleged 'willful, wanton, malicious, arbitrary, capricious, fraudulent conduct' of the defendants. The third count concerning defendant Chavez was dismissed by the court, as was the fourth count wherein compensatory and punitive damages were sought. No appeal or writ of error was prosecuted from these dismissals. Accordingly, the questions presented by counts one and two were tried to the court, and resulted in a conclusion that the three defendants named in cause of action number one were guilty of 'intentionally, willfully, arbitrarily, capriciously, and maliciously enter(ing) into a plan or scheme between them to harass plaintiff and usurp the powers and duties of the office of mayor' and that because of their actions they should be removed. Concerning count two, the court concluded that the appointment of defendant Schwartz was wrongful and illegal and should be declared null and void, and that after his appointment defendant Schwartz joined with the other defendants in their plans and schemes and accordingly was guilty of malfeasance in office and should be removed. From the judgment entered pursuant to the court's decision, defendants sought and obtained the issuance of a writ of error by this court.
Although the court's findings disclose a number of matters of conflict between the plaintiff and defendants, they are summarized by plaintiff in his answer brief as follows:
Without attempting to detail the facts surrounding each of these items, it should be sufficient to note that the record discloses a considerable conflict existed between the parties. They arose primarily because of the defendants' refusal to approve either of two men nominated by plaintiff to fill a vacancy on the Council, and because when plaintiff left a regular meeting of the Council before adjournment upon a nomination by the president 'pro tem' of the Council, the three members proceeded to appoint defendant Schwartz and have him immediately sworn into office. Also, a conflict existed between plaintiff and the three Council members, exclusive of defendant Schwartz, over appointment of a police chief and water superintendent.
Accordingly, we are called upon to determine that the acts of defendants constitute malfeasance in office as that term is used in § 14--9--8, N.M.S.A., 1953 Comp., reading:
'Any person elected or appointed to an elective office of a municipality may be removed for malfeasance in office by the district court upon complaint of the mayor or governing body of the municipality. * * *'
The powers of the mayor are set forth in §§ 14--10--2 to 14--10--7, N.M.S.A., 1953 Comp. Of particular importance to a consideration of our problem are §§ 14--10--5(A), 14--10--6(A)(1), and 14--11--1, N.M.S.A., 1953 Comp. These sections read:
14--10--5:
(Emphasis added.)
14--10--6:
'A. Subject to the approval of a majority of all members of the governing body, the mayor shall:
(1) appoint all officers and employees except those holding elective office; * * *.' (Emphasis added.)
14--11--1:
(Emphasis added.)
From the plain language of the statutes quoted, the governing body has an important part to play in the selection of the appointive officers and employees of the municipality, and in the selection of a person to fill a vacancy on the village council. In failing to approve the Mayor's selection, or in refusing to give 'advice and consent' to the Mayor's selection of a particular person to fill a vacancy on the Council, and in filling it themselves, were the defendant members of the Council guilty of malfeasance and accordingly subject to removal upon complaint of the Mayor under § 14--9--8, supra? We are convinced that the simple answer must be in the negative. The power to appoint being in the mayor, subject to 'confirmation by the governing body,' or '(s)ubject to the approval of a majority of all members of the governing body,' or 'with the advice and consent of the governing body,' there can be no appointment until the confirmation, approval, or advice and consent, as the case may be, has been obtained. See Strachan v. Mayor of Everett, 326 Mass. 659, 96 N.E.2d 392 (1951); Broadwater v. Booth, 116 W.Va. 274, 180 S.E. 180 (1935); State ex rel. Sandquist v. Rogers, 93 Mont. 355, 18 P.2d 617 (1933).
The only cause for removal contained in the statutes is malfeasance. The term 'malfeasance' as been variously defined as a comprehensive term which includes any wrongful conduct affecting performance of official duties, State ex rel. La.Mon v. Town of Westport, 73 Wash.2d 255, 438 P.2d 200, 202 (1968); or as a wrongful act which the actor had no legal right to do, or any wrongful conduct which affects, interrupts, or interferes with performance of official duties, or an act for which there is no authority or warrant of law or which a person ought not to do at all, or the unjust performance of some act, which party performing it has no right, Daugherty v. Ellis, 142 W.Va. 340, 97 S.E.2d 33 (1956); or doing an act which is wholly wrongful and unlawful, and which an officer has no authority to do, and if the act is discretionary it must have been done with an improper or corrupt motive, People v....
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...interpreted "malfeasance in office" to require a wrongful act that was done in an official capacity. See, e.g. , Arellano v. Lopez , 81 N.M. 389, 467 P.2d 715, 717-18 (1970).11 See also Cavender v. Cavender , 114 U.S. 464, 472-74, 5 S.Ct. 955, 29 L.Ed. 212 (1885) (finding "neglect of duty" ......
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CAPS v. Board Members, 20139
...In determining the meaning of the word misfeasance, the trial court found guidance in this court's opinion in Arellano v. Lopez, 81 N.M. 389, 467 P.2d 715 (1970). Although Arellano deals with the definition of malfeasance, misfeasance is discussed by way of contrast and "Misfeasance is some......
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...to the requirement of an "improper or corrupt motive," see id., 113 N.M. at 730, 832 P.2d at 791 (quoting Arellano v. Lopez, 81 N.M. 389, 392, 467 P.2d 715, 718 (1970)), we were analyzing a discretionary act. See CAPS, 113 N.M. at 730, 832 P.2d at 791. In CAPS, it was undisputed "that the s......